By Margarita S. Ilieva
Introduction
On 4 September 2025, the European Court of Human
Rights (the Court) rendered a landmark judgment in E.A.
and Association européenne contre les violences faites aux femmes au travail v.
France. For the
first time, the Court: 1) mapped criteria to determine lacking
consent in sexual violence (SV) cases; 2) used, and defined, coercive control in sexual relationships; 3) established that a coercive control context is relevant
to determining consent; 4) held that using past agreement coerced in a controlling relationship to derive consent to sex acts is victim blaming (‘culpabilisant,
stigmatisant’), and, therefore, revictimisation
barring victims’ access to justice. Yet, as in the other
three cases of workplace
sexual harassment, the Court ignored the crux of the matter, namely, gender discrimination.
After summarising the
facts and the judgment, I will discuss this and other gaps, as well as the precedential
value of E.A., against the backdrop of earlier SV cases.
Facts
E.A. suffered coercive control in a violent sexual
relationship with a supervisor. She was 26 years old, an assistant pharmacist
in training, on temporary contract. Her abuser, the department head, was 16 years older.
(§§4-5, 7-8, 65) Their relationship was sadomasochistic, with E.A.
receiving severe and frequent degrading treatment, beating, and forced sexual
acts, including anal penetration. (§20) She suffered
bleeding, bruises, inflammation, and pain while walking. (§28) He had her
sign a ‘contract between the master and his bitch’, which listed her ‘duties’ to:
‘regularly suck her master’; wear a collar; accept to be ‘fucked by
others in the presence of her master’; inform her ‘master’ when going out and
wear a ‘chastity belt’; ‘take care of/ massage her master’s dick’; act ‘obedient and devoted to her master’; wear clothes,
underwear, and makeup chosen by her ‘master’; eat from a bowl at her ‘master’s
feet’; ‘pee with the door open for her master to hear daily’; send her ‘master’
a daily photo with her underwear lowered; send him her daily agenda; take
beatings on her behind when not respecting his ‘orders’; and more. (§11)
That contract had the abuser’s professional seal as head on it. (§11)
The abuser had established domination over her,
keeping her in dependency. He demanded sex at work and that she say she was his
‘shit’. He urinated on her to ‘mark his territory’ and forced her to use an
email address entitled chiennkb@laposte.net (‘bitch[his initials]’). E.A.
unsuccessfully tried to break up, which exacerbated his professional harassment
of her. (§21) He threatened her with professional
consequences and often devalued and humiliated her before colleagues.
(§§15, 25, 30)
E.A. feared his influence on her professional future,
including regarding a procedure to obtain permanent employment. With a fixed-term
contract, she risked having to cover her tuition’s cost if she left. (§26)
E.A. was diagnosed with severe PTSD and depression and placed on indefinite medical leave. (§§9, 22) She was hospitalised in a psychiatry for a long period.
She was assessed as
‘destroyed in terms of psychological balance’, displaying ‘hostage syndrome’,
with symptoms typical of SV victims. The psychiatrist stressed that her vulnerability
could not be unknown to her abuser. (§37)
During the ensuing criminal investigation, another expert confirmed
E.A.’s symptoms and her relationship with the abuser being sadomasochistic and coercively
controlling. The abuser had disbalanced and plunged E.A. in significant moral
distress. Her statements matched her emotional state. (§51)
The abuser was investigated for violence and sexual harassment abusing a
position of authority. (§44) However, the investigators failed to pursue the rapes and other SV E.A. complained
of. (§65) The abuser
was brought before a tribunal incompetent to hear rape cases. (§58) While the
first instance convicted him, the appeals court fully acquitted him, relying on
E.A.’s ‘consent’ given in the ‘master-bitch contract’. (§§66, 71-3) The last instance
refused to reexamine this. (§76)
Judgment
The Court reaffirmed that an investigation into alleged SV must focus on
(lacking) consent. Consent must express free will at the moment sex is
occurring. (§140) The authorities have a duty to examine all
the facts and determine consent based on their entirety, carrying out a
contextual analysis. (§§141-2)
Importantly, the Court listed factors for lacking consent:
- an unbalanced relationship between accused
and victim;
- victim’s youth/ age disparity;
- victim’s psychological fragility/
particular vulnerability, her capacity for judgment, (lack of) sexual
experience, or drunken/ intoxicated state;
- any ‘freezing’ during the acts;
- the acts’ impact on victim;
- perpetrator aware of her vulnerability, and/
or using a relationship of trust or status; circumstances conducive to coercion,
such as deserted place or multiple aggressors. (§143)
Regarding SV in professional contexts, the Court reiterated that power
imbalances (victim’s position of subordination) are an important contextual element
when assessing a victim’s behaviour. (§145)
The Court reiterated that
French criminal law is inadequate to protect against non-consensual sex acts (see, for a similar
finding, L. et Autres c. France (2025) analysed here). Relying on GREVIO, it found French rape law to be
deficient as the provisions did not refer to ‘consent’ (§148-9) The Court noted a
growing European consensus to expressly define rape and SV by lacking informed consent. The legislation must
provide for criteria to evaluate free will. (§150)
Furthermore, the authorities failed to implement the law in
practice: effective
investigation and punishment for the
perpetrator was lacking. E.A.’s
complaint contained credible (anal) rape and other SV allegations,
which were not investigated
despite their particular gravity. (§§153-4) The investigation took insufficient
account of the control
exercised by the abuser and the severe impact on E.A.’s health. It was crucial
to assess whether such circumstances allowed free consent. (§§156-9)
The courts
refused to consider rape and SV charges as no ‘violence, constraint, threat, or
surprise’ was proven, in their view. Despite acknowledging E.A.’s fragility and
her aggressor’s abuse of professional status, his professional threats, and his
aggressive humiliation of her in professional situations, which had all eroded
E.A.’s health and caused her to submit to him, they did not draw any
conclusions from that context regarding her ‘consent’. (§161)
The facts had to be assessed in their professional
context. (§165) The abuser exercised functional authority
over E.A., his post giving him real power over her. E.A. was a young
professional whose employment status depended on her success in a competition,
which her abuser had threatened to intervene in. He was vindictive towards her
and used his status to discredit and isolate her professionally. (§165)
Moreover, the sexual acts had a context of repeated
psychological violence, including increasing humiliation. The abuser exercised
growing surveillance over E.A.’s daily life and deliberately used emotional
ambivalence towards her. Importantly, the ECtHR characterised this as coercive
control, defining it as an entirety of behaviours typical of
relationships marked by domination in which one individual aims to persistently
control their partner and their partner’s life affecting their psychological
integrity and personal autonomy. (§166) The Court relied
on GREVIO reports discussing
such control in intimate partner violence contexts. It noted that coercive
control is likely to render the victim particularly vulnerable, affecting their
judgment. An authority had found that the abuser had ‘extremely significant
hold’ over E.A. (§166) However, the courts had failed to take into account her professional
vulnerability and the major deterioration of her mental health, causing her
psychiatric hospitalisation for many months. (§167-8)
Importantly, the Court concluded that the manner in
which the courts had imputed consent to E.A. based on the ‘master-bitch
contract’ amounted to her secondary victimisation. (§170) It stressed that no manner of past agreement, including a written contract,
is capable of amounting to consent, consent being by nature revocable. The
courts should have completely ignored the ‘contract’ between E.A. and her
abuser. (§169)
Indeed, the Court held, the ‘master-bitch contract’
which the abuser made E.A. sign was one of the instruments of his coercive
control. By holding her signature against her, the courts had exposed E.A. to
secondary victimisation. Such reasoning was guilt-inducing, stigmatising, and
liable to dissuade SV victims from enforcing their rights. The authorities had
failed their duty to protect E.A.’s dignity. (§170)
In
conclusion, the gaps in the domestic legislation and the deficiencies in its
implementation - among others, excluding SV from the investigation and
misinterpreting E.A.’s consent - amounted to a failure of the state to meet its
positive duties to address sexual violence in violation of Articles 3 and 8
ECHR. (§171)
Commentary
E.A. is a
future-relevant precedent. The ECtHR has significantly developed rape and
sexual harassment law under the ECHR by setting out illustrative conditions in
which free, informed consent should be found lacking. It has integrated the notion
of coercive
control in sexual relationships as an important aspect of the requisite
contextual analysis when assessing consent. Now explicitly under ECHR law, a
coercive control context exacerbates a victim’s vulnerability affecting her
ability to freely consent. Furthermore, the Court has built on its
acknowledgment that only present consent is consent, now also outside of
marriage contexts.
(See H.W. v. France (2025) for the first holding
that only present consent is relevant: contrary to what the Govt had asserted before
the Court (!), consent to marriage could not imply consent to future sex;
enforcing ‘marital duties’ went against the duty to combat sexual violence,
including marital rape (§91).)
E.A. is a landmark, recognising that, for judges to use past consent,
especially in a coercive control context, in order to construct consent to a sexual act is revictimisation,
blaming survivors and discouraging them from reporting SV. The Court has explicitly grounded the duty to refrain from
such victim stigmatisation in respect for victims’ dignity, using
dignity-based analysis to uphold victims’ rights.
E.A. is only the third case of SV impunity, after L. v. France and J.L. v. Italy, in which the Court has recognised judicial victim-shaming and blaming (‘guilt-inducing and
stigmatising’ reasons) as revictimisation and a
breach of the ECHR per se. In
two other cases, respectively, workplace sexual harassment and online violence
by a former partner (revenge porn), the Court recognised negative gender
stereotyping as stigmatising and revictimising, however, in a limited manner
and not as a separate breach (M.Ș.D.
v. Romania, §147-8, see commentary; C v. Romania, §83-5, see commentary).
E.A. is a solid advancement compared to all these cases, as the Court found
revictimisation based on mere imputation of consent, with no additional
misogynist language, while in the earlier cases there had been offensive
stereotyping and sexist insults/ humiliating remarks as well.
On the other
hand, unlike L. v. France, but like earlier cases of judicial victim-blaming of SV survivors, in which the Court, despite finding revictimisation, simply refused to address
discrimination complaints (commentary on this), E.A.
ignores gender inequality as the root cause of such revictimisation. E.A. made no discrimination allegation, possibly influenced by the Court’s tendency to dismiss such allegations
as ‘unnecessary’ (M.Ș.D. v. Romania, J.L. v. Italy)
or as requiring evidence for Article 14 to even apply (C v. Romania). However,
under international law, sexual harassment/ violence is unquestionably gendered. Under the
Istanbul Convention (IC), sexual harassment is a form of violence against women (VAW).
Equally, under EU law, including the VAW Directive, criminal sexual harassment is a form of VAW. Under the gender equality directives (2006/54/EC, 2010/41/EU), sexual harassment constitutes sex discrimination. Under the Victims’
Directive, sexual harassment is a form of GBV.
Under ILO
Convention 190, sexual harassment is included in GBV and
gender-based harassment. Under CEDAW, sexual harassment is a form of GBV
affecting women. GBV is rooted in men’s entitlement
and privilege over women, social norms regarding the need to assert male
control or power, enforce gender roles or prevent or punish what is considered
to be unacceptable female behaviour. Those factors also contribute to the
explicit or implicit social acceptance of GBV and the widespread impunity (General
recommendation No. 35).
The application of preconceived
and stereotypical notions of what constitutes GBV, what women’s responses to
such violence should be, and the standard of proof
required to substantiate its occurrence affect women’s rights to equality
before the law, a fair trial and effective remedy. ‘Often
judges adopt rigid standards about what they consider to be appropriate
behavior for women and penalize those who do not conform to these stereotypes.’
(CEDAW 2015)
In E.A., the
Court consistently relied on the IC and GREVIO materials, but failed to acknowledge
the gendered nature of E.A.’s victimisation by her abuser and to scrutinise her
judicial revictimisation for gender bias. Indeed, regarding victims’ rights in
principle, the Court reaffirmed that ‘it is essential for [judges] to avoid
reproducing sexist stereotypes in decisions, to downplay [GBV],
and to expose women to secondary victimisation by using guilt-inducing
language’. (§138) [emphasis added]
At the same time, in its reasoning regarding E.A.’s specific case, it never
once mentioned that she was victimised as a woman enduring GBV and then, revictimised
as a woman by sexist stereotyping.
E.A. is one of a total of four workplace sexual harassment cases decided by
the Court: Allée c. France (2024); Vučković v. Croatia (2023); and C.
v. Romania (2022) analysed here. In none of those cases did the Court engage with the
underlying issue of gender discrimination. In this regard, E.A. is
another missed opportunity for the Court to acknowledge that sexual harassment being
inherently gendered and thus, discriminatory, , any failure to properly address
it, especially at the level of legislation and judicial decisions denying
victimhood/ blaming victims, should be scrutinised as likely being
discriminatory too. However, in C.
v. Romania (2022), the Court refused to apply Article 14, implying that the applicant in such a case has a burden of proof for sheer applicability. C. failed to
meet that, not providing ‘any material to allow the Court to assess the
existence of potential discrimination’ (§90).
Perhaps unsurprisingly, the applicants following her in Vučković, Allée,
and E.A. did not raise Article 14 allegations, although they all faced
their abusers’ impunity, and one of the victims, Allée, was in fact punished
instead of him, for exposing him.
The
Court has often held it unnecessary to respond to discrimination claims (see critique). On the other hand, as master of the characterisation of the facts – a
power it frequently relies on – it has never, not once, considered it necessary
to engage with underlying (gender) (in)equality where the applicants silenced
themselves on that issue.
I argue that the Court discourages discrimination claims, which may
have contributed to E.A.'s not making such a claim. The Court routinely edits
applicants' claims, applying articles it prefers, discarding some of the ones
they raised, especially A14. It should be able and willing to do the reverse as
well - apply an article the applicant omitted if the facts warrant it, especially Article 14 in a GBV
case, in which the courts revictimised the woman. In E.A.,
at the very least, it could and should have integrated a
discrimination analysis under Articles
8 and/or 3, as it has done in other cases.
Next, the Court did
not qualify E.A.’s revictimisation as a breach of a negative State duty
(to refrain from wrongdoing). It only found positive duties (to act
protectively) were breached. (§171) This omission
typifies the Court’s approach to judicial stigmatisation of SV/ GBV victims (L. v. France, J.L. v. Italy, M.Ș.D. v. Romania, C v. Romania). The Court stops
short of condemning the domestic judges for what they did, framing it
instead as something they let happen: they ‘exposed’ the victim to
revictimisation rather than committed her revictimisation themselves (see critique).
The Court has
recognised domestic judicial leniency as barring access to justice in SV cases,
dissuading victims from reporting pervasive abuse (Vučković v. Croatia). However, it may not
have examined its own arguable lack of strictness with judges blaming victims in
such cases, shielding them from being named as gender-biased, active
perpetrators of discriminatory harm. The consequences of its leniency in this
regard may be seen as similar: in E.A, and other cases of impunity for SV,
the revictimised women did not allege discrimination, their possible Article 14
claims possibly discouraged by ECHR case law.
The Court should help
women articulate their inequality, not silence them by creating expectations
that they would be dismissed if they attempt to enforce their equality rights on
a par with other Convention rights, that their voices would be mute if they
named male privilege.
